Monday, October 27, 2003

Nominee Brown: Well, I've been reading over the PFAW Report on the Janice Rogers Brown nomination. It raises some interesting points (though any judge who has served through over 900 cases will have written some controversial things). For example, on a case that was in the news recently:

Relying on precedent that the majority pointed out had been handed down three decades before the development of modern commercial speech jurisprudence, Justice Brown disagreed with the majority [in Nike v. Kasky] that Nike's speech was commercial. She argued instead that Nike's labor practices were themselves a matter of public concern and thus Nike’s mailings and other speech on the subject should have been protected even if false.

I can understand disagreeing with Brown on this, though I personally do not; what I can't understand is treating her opinion as thoroughly outside the mainstream. Jonathan Rauch (not a right winger, he) wrote a reasoned defense of the kind of logic Brown used:

. . . empowering the courts to act as roving truth commissions would overburden the legal system and chill public discourse. Centuries of hard experience with inquisitions and censorship boards and speech codes have proved that vigorous, uninhibited public debate is the only reliable way to sort truth from falsehood. The cure for bad speech is more speech. This is the great paradox at the heart of the First Amendment: To learn truth, allow lies.

In another example, PFAW cites People ex. rel. Gallo v. Acuna:

Writing for a majority of the court, Justice Brown upheld an injunction which, among other things, denied the right of certain alleged gang members to be "in the company of any other VSL or VST [gang] member while '[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public view' in the four-block Rocksprings area." As two of the dissenters pointed out, the language of the injunction was alarmingly broad and invited selective, and possibly discriminatory, enforcement.

I won't try to justify the principle, since I haven't read the case, but I will note two things in passing. For one, Brown wrote for the majority; thus, this isn't an example of her hanging off the right end of the bench. For another, this kind of incursion on freedom of association needs more context. For example, we do see personal and locality restraining orders that do not require a conviction of a crime. Finally, the plea for free-association rights is a little disingenuous coming from an organization that consistently opposes the Boy Scouts in their efforts to apply the principle.

There are numerous instances in PFAW's brief against Brown where I disagree with Brown's opinions, whether expressed from the bench or in another setting. I don't, however, see the pattern they're purporting to show: that Brown is a judicial activist, hostile to civil rights, or outside the mainstream. I agree that difference of legal opinion entitles a Senator to vote against a nominee. I don't agree that such diffence should be used, in good conscience, to deny a vote or justify a filibuster blocking the action of a majority of the Senate. That is to say, if Brown's opinions offend a Senator, he or she can, and should, vote to not confirm. But raising the difference of opinion to the level of disqualification, as Senators like Schumer and Leahy have admitted that they intend to do as often as possible, misapplies the Senate's function in the judicial nomination process.

More: Clint Bolick says Brown's not a right-wing stooge, but a sophisticated, libertarian conservative. No doubt that means she'll drop off even quicker than Miguel Estrada.